Commentary from a Christian/Constitutionalist perspective

Monthly Archives: March 2017

Our federal judiciary has long been usurping the powers of Congress, legislating from the bench. In Roe v. Wade, for example, the Supreme Court declared a right to kill unborn children that can be found nowhere in the Constitution. In Obergefell v. Hodges, they redefined marriage to include homosexual and lesbian couples.

Now, some federal judges are blatantly usurping the powers of the executive as well. The recent decisions by judges in Washington state and Hawaii, denying the validity of President Trump’s executive orders limiting immigration defy the president’s power to execute the laws that Congress has established. Title VIII of the United States Code 1182 states that “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” The denial of President Trump’s orders pursuant to this law is clearly an illegal action by the federal judges.

Unfortunately, the divided state of our country’s politics has made it impossible to respond appropriately to these illegal judicial actions. The obvious reaction should be for Congress to remove the judges by impeachment. A judge’s disobedience to federal law is clearly a “high crime,” and justifies his removal. The problem is that Democrats in Congress have become so radicalized that conviction in the Senate is impossible. There is simply nothing that a liberal official could do that would get a majority in the Senate to convict him. For Senate Democrats, the highest principle is party or ideological loyalty. In this environment, impeachment has completely lost its power. The Framers of the Constitution could never have predicted this degree of partisanship.

The longest range solution is to wait for the leftist judges to retire or die, and replace them with people who will respect the Constitution and the role of the judiciary established by it. Or to educate enough voters that replacing leftists in Congress would be possible. But we need a solution that will take less than a whole generation to accomplish.

A medium range solution would be a Constitutional amendment to require federal judges to be re-confirmed by the Senate periodically. This essentially gives up on the idea of an “independent judiciary.” That would be a serious move, since it goes against one of the principles the Framers had in mind when they created the Constitution. But it may be justified, because that principle presupposes judges who are committed to the Constitution and the law. We can’t assume that any longer. In any case, we need an even more immediate response to the crisis of judicial rebellion.

The three branches of our federal government are intended to be co-equal. None of them are to be completely dominant. Judicial rebellion means that the federal judges hold themselves higher than the legislative or executive branches. President Trump should declare that these rulings are illegal, and he should enforce his legally justified executive orders in spite of the judges’ orders.

What would be the downside of such an action by the president? The mainstream media, dominated by the globalist left in the Council on Foreign Relations and other such organizations, would go ballistic, of course. But how much worse could their treatment of Trump and conservatives in general become? It seems to me that they are already doing their worst.

The Democrats and fake Republicans in Congress would almost certainly try to impeach President Trump. But it seems unlikely that they could muster even a simple majority in the House, let alone the super-majority required in the Senate. The debate would be acrimonious, but the end result would be that the president would have retained his authority as prescribed by law.

The leftist federal judges have obviously decided that there is now no limit to what they can get away with. One way or another, the survival of our Republic requires that they be brought back under the Constitution.